NO. 88-300
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JOHN ROOKHUIZEN,
Plaintiff and Appellant,
-vs-
BLAIN'S MOBILE HOME COURT, INC.,
a Montana corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial. Distri-ct,
In and for the Countv of Yellowstone,
The Honorable Robert Holmstrom, Judge presidinq.
COIJNSEL OF RECORD:
For Appellant:
Michael M. Morse, Ri-llings,Montana
For Respondent :
2arussi & Bishop; Gene R. Jarussi, Billings, Montana
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a (T?Z - -- : .1 Submitted on Briefs: Dec. 9 , 1988
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,' Decided: January 27, 1989
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Mr. Justice I;. C. Gulbrandson delivered the Opinion of the
Court.
Appellant appeals the order and judgment of the
Thirteenth Judicial District, Yellowstone County, grantinq
respondent's motion for a directed verdict at the close of
plaintiFf's case-in-chief. We affirm the judgment of the
District Court and award costs and assess damaqes in the
amount of $209 against counsel for appellant.
This case arose after a fire destroved appellant's
mobile home which was located Blain's Mobile Home Court, Inc.
(RJ-ain's). Appellant had moved the mobile home into the
court on or about April 1, 1982. He signed and completed an
applicatj-on for rental of a mobile home space, a rental
agreement, and acknowledged receipt of rules and regulations
governing the agreement. On the evening of August 19, 198?,
appellant returned to his mobile home. Upon entering the
mobile home he observed smoke and flames around an outlet in
the kitchen. He left the mobile home, requesting his wife to
go to the neighbors and call the fire department. He then
went next door to get a garden hose with which to fight the
fire. Appellant testified he almost had the fire out when
the kitchen area erupted in flames, forcing him out of the
home. When the neighbors called a private fire company, thev
were told the fire company did not cover the mobile home
court anymore. They then called Blain's office to summon the
volunteer fire service.
The volunteer fire service arrived approximately
fifteen minutes later. The first pump on the fire truck
would not start so the second pump was started. This pump
ran only a few minutes before it ran out of gas. More gas
was obtained and the pumping resumed only to have the truck
run out OF water within a few minutes. Water was then added
tc the tank using garden hoses. By the time the fire was
extinguished the mobile home was extensively damaged in the
kitchen and living room areas with extensive smoke damage
throughout.
A second fire occurred early the next morning, causing
more damage to the living room, first bedroom and other
areas. The volunteer fire department also extinguished this
second fire. The insurance adjuster for the appellant who
examined the mobile home on August 20, 1982, considered it a
total loss.
Appellant contends the extent of the damage was due to
negligence on the part of the mobile home court in its
maintenance and operation of the volunteer fire department,
and its failure to provide adequate fire protection for the
residents of the mobile home court. Specifically they all-eqe
that Rlain's was negligent for:
(1) terminating the O'Donnell Fire Service;
(2) assuring the appellant that they provided their
own service;
1 3 ) providing the inadequate equipment and inadequate
training of the volunteer fire service;
(4) allowing the pumps on the fire truck to he
nonfunctional and the water tank nearlv out of water;
(5) one of the volunteer fire fighters breaking out
the windows in the mobile home causing the fire to spread
faster into other areas; and
(6) the fact that the fire was not completely
extinguished before the fire fighters left the scene
resultinq in the second fire in the early morning hours.
Prior to trial the respondent moved for sumrnarv
judgment on all counts. The judge having iurisdiction over
the case at that time granted the motions for summary
iudgment on two counts of fraudulent, malicious and
oppressive conduct by the respondent in failing to deal in
good faith, given the lack of equal bargainhg power between
the parties. The case then proceeded to trial. At the close
of the appellant's case-in-chief the respondent moved for a
directed verdict on all of the remaining counts. After
hearing arguments on the motion the court granted the motion
to dismiss all five remaining counts. From this order and
judgment granting the motion for directed verdict, appellant
appeals.
Appellant presents four issues which the respondent
rephrases into a single issue. We feel the respondent's
characterization of the four issues as one is proper and
adopt it as the issue before this Court.
Was it error for the District Court to
grant Blain's motion for a directed
verdict?
We will first consider whether the trial court
committed reversible error by holding that respondent Blain
owed no duty to appellant Rookhuizen to provide fire
protection services.
Appellant alleges two separate claims, one in contract
and one in negligence. Having examined the evidence
introduced at trial this Court finds, as did the District
Court, that the appellant failed to establish a prima facie
case on either claim. To establish the contractual claim,
appellant had to introduce evidence proving a meeting of the
minds between the parties to provide fire services on the
part of the mobile home court before a contractual obligation
would arise. Chadwick v. Giberson (Mont. 1980), 618 P.2d
1213, 1215, 37 St.Rep. 1723, 1725-1726. At trial, appellant
introduced the rental agreements the parties executed when
the appellant moved his mobile home onto the court. However,
neither the application nor the agreement itself included a
contractual obligation on the part of the court to provide
fire services to the appellant. The rules and regulations,
referred to in the rental agreement and introduced by
respondent at trial, also did not contain any reference to
fire protection services. Appellant testified that he
thought the rules and regulations he received contained
something dealing with fire protection. However, the
appellant was unable to produce this differing version of the
rules and regulations as they had been destroyed in the fire.
In light of the inconclusive and unconfirmed nature of the
appellant's statements and in ,-ight clear written evidence
of
to the contrary, the District Court was correct in its
finding that no contractual obligation to provide fire
services existed between the parties.
The second claim of negligence requires appellant to
prove the existence of a dutv owed by the respondent, a
breach of that duty and damages caused by the breach of the
duty. R.H. Schwartz Construction Specialties v. Hanrahan
(1983), 207 Mont. 105, 107, 672 P.2d 1116, 1117. The
District Court found that appellant failed to establish a
duty on the part of Blain's to supply fire protection
services. As previously stated, the rental agreements and
rules and regulations did not contain a duty on the part of
the mobile home court to provide appellant with fire
protection services. Therefore it was necessary for the
appellant to prove that the mobile home court had a duty as
established by statute or by common law.
The appellant claimed the mobile home court violated
the Montana Residential Landlord and Tenant Act of 1977,
5 5 70-24-101 through -442, MCA, (the Act) by failing to "keep
all common areas of the premises in a clean and safe
condition." Section 70-24-303 (c), MCA. However, the
appellant provided no justification for finding that the Act
requires mobile home court owners to provide fire protection
services. While 70-24-105, MCA, does extend the principles
of law and equity relating to safety and fire prevention to
the Act, the appellant failed to introduce evidence showing
what types of prevention or standards were applicable to the
respondent.
Appellant claims the District Court erred when it
refused to allow appellant's expert witnesses to testify
regarding standards it claimed the volunteer fire department
was obliged to obey. The court consistently sustained the
defendant's objections regarding testimony on the National
Fire Protection Association's (NFPA) standards as irrelevant
and lacking foundation. The appellant failed to lay the
proper foundation showing the standards created a duty on the
part of the respondent to provide fire protection. We note
the transcript indicates the trial judge repeatedly attempted
to aid appellant's counsel hy informing him of this necessarv
foundational requirement, to no avail. Upon counsel's
failure to produce authority showing the standards were
applicable, the court was left with no recourse, but to
exclude testimony upon the NFPA standards.
Appellant also fails to produce any case law which
would extend a duty to the mobile home court's owner to
provide fire protection services. Appellant does cite case
law which establishes a duty for landlords in general to
exercise ordinary care in the management of the premises to
avoid exposing persons thereon to unreasonable risk of harm.
Corrigan v. Janney (Mont. 1981), 626 P.2d 838, 841, 38
St.Rep. 545, 549. Also when a property owner's affirmative
acts increase an existing hazard or create a new hazard, that
property owner may be held liable. Cereck v. Alhertson's,
Inc. (Mont. 1981), 637 P.2d 509, 511, 38 St.Rep. 1986, 1989.
Appellant claims the prior case of Parrish v. Witt (19771,
171 Mont. 101, 555 P.2d 741, extends this theory to the
mobile home park situation. Unfortunately, appellant hinges
this duty upon Blain's alleged affirmative action of
cancelling the prior professional fire service and
implementing another fire service under Blain's exclusive
control.
The evidence which appellant introduced at trial failed
to prove such an affirmative action was taken by Blain's.
Here evidence showed Blain's acquiesced to the will of the
majority of the tenants to terminate the existing
professional services in favor of a volunteer service. While
Blain's did contribute the storage shed, parts of the fire
truck, and paid for some of the truck's repairs, it did so as
the owner of 25 of the 217 mobile homes in the park. No
evidence showed it exercised exclusive control over the
service. As the appellant failed to prove Blain's was
responsible for the service, the District Court was justified
in holding that the evidence did not indicate any duty owed,
and thus respondent could not have been negligent.
The law with regard to directed verdicts in this state
is well established. The court shall view the evidence
presented by the opponent to the motion, in a light most
favorable to the party opposing the motion. In light of that
consideration of the evidence, it must follow as a matter o f
law that the only result possible is the result sought hj7 the
moving partv. Lawlor v. County of Flathead (1g78), Mont.
Generally directed verdicts are net
favored by the courts. LaVelle v.
Kenneally (1974), 165 Mont. 418, 539 P . 2 d
788. A cause should never be withdrawn
from the jury unless the conclusion from
the facts advanced by the moving partv
follows necessarily, as a matter of law,
that recovery can, as here, or cannot be
had under any view which can reasonably
be drawn from the facts which the
evidence tends to establish. [Citations
omitted.' A corollary rule is that where
reasonable men might differ as to the
conclusions of fact to he drawn from the
evidence viewed in the light most
favorable to the partv against whom the
motion is made, a jurv question is
presented, and resolution hy way of a
directed verdict is improper. Parini v.
Lanch (1966), 148 Mont. 188, 41.8 P.2d
861.
Lawlor, 582 P.2d at 754. As this Court has previously stated
regarding the related Rule 50 (h), M. R.Civ. P. , motion for
judgment notwithstanding the verdict:
If a prima facie case is made out, the
motion should be denied. Motions made
pursuant to Rule 50(b), M.R.Civ.P.,
cannot be granted if there is substantial
conflict in the evidence. Like any form
of directed verdict it rests on a finding
that the case of the party against whom
it is directed is unsupported in some
necessary particular.
Nicholson v. United Pacific Insurance Co. (Mont. 1985), 710
P.2d 1342, 1345, 42 St.Rep. 1822, 1826, citing Jacques v.
Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319.
Having previously found appellant failed to prove a duty
existed to establish a prima facie case, we find the District
Court was correct in granting respondent's motion for
directed verdict.
Attorney's Fees
Respondent seeks attorney's fees from appellant's
counsel for this appeal pursuant to Rule 32, M.R.App.P. That
Rule allows this Court to award damages when the Court is
satisfied from the record and the presentation of the case on
appeal that the appeal was taken without substantial or
reasonable grounds. It is not the position of this Court to
place hurdles in the appeal process which discourage a party
from taking a valid appeal. However, this case presents
several reasons o r imposing sanctions. Here, counsel for
appellant was repeatedly informed by the trial judge of the
need to establish a duty owing to him by the respondent.
Upon failing to present evidence of such a duty, the trial
judge was left with no alternative but to grant the
defendant's motion for a directed verdict.
We further note that appellant's brief does not contain
a statement of the case (Rule 23(a) ( 3 1 , M.R.App.P.),
citations to authority for numerous contentions (Rule
23(a) ( 4 ) , M.R.App.P.), nor citations to pages of the record
relied upon (Rule 23 (e), M.R.App.P.) . In addition we note a
failure to accurately quote case law, commissioners1 comments
and the record, as pointed out in the respondent's brief.
For the foregoing reasons, we assess damages in the amount. of
$200 to the respondent.
Affirmed and remanded for further proceedings in
compliance with this opinion.
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Justice
We concur: /
V H ~ ~ w b
;rustices